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Arizona's new law creates havoc for employers of medical marijuana users

With its recent passage of Proposition 203, the Medical Marijuana Act ("MMA"), Arizona has joined 15 other states and the District of Columbia in providing an affirmative defense to criminal prosecution for individuals making medical use of marijuana. Arizona's MMA permits a qualifying patient with a debilitating medical condition legally to obtain and use marijuana to treat various serious illnesses.

Unlike medical marijuana legislation in other jurisdictions, however, Arizona's MMA establishes significant protections for job applicants and employees who lawfully use medical marijuana. Specifically, employers cannot discriminate against such individuals in hiring or termination. Employers also cannot impose other unfavorable employment terms and conditions because an employee holds a medical marijuana registry card or tests positive for marijuana, unless the employee used, possessed or was impaired by marijuana on the employer's premises or during working hours.

In short, the MMA imposes new burdens on Arizona employers and poses significant problems for enforcement of Arizona employers' existing substance abuse policies. This will briefly summarize the key features of the MMA, emphasizing those rights retained by employers.

Possession and Usage of Marijuana on Company Premises During Working Hours

Arizona employers should make clear to their employees that marijuana use or possession on company premises or during work hours, including breaks, is unacceptable and grounds for termination. Employers may discipline an employee for possessing or using marijuana on company premises or during work time, even if that employee is authorized to use medical marijuana under state law. A.R.S. § 36-2814(B).

Impairment

Employers may discipline employees who are "impaired by marijuana" while working or while on company property. Unfortunately, the statute does not provide guidance to employers to determine whether an employee is "impaired" by marijuana use. The MMA states that "... a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment." A.R.S. § 36-2814(A)(3). Thus, the mere fact that an employee tests positive for marijuana use, even if the test takes place after a workplace accident, does not necessarily mean that the employee is "impaired."

Therefore, employers must compile additional evidence of impairment before taking disciplinary action against an employee who tests positive for marijuana in either a reasonable suspicion context or a post-accident investigation, and who uses medical marijuana.

Loss of Monetary or Licensing Related Benefits Under Federal Laws and Regulations

Employers may also terminate the employment of or refuse to hire a medical marijuana user if the retention or hiring "would cause an employer to lose a monetary or licensing-related benefit under Federal Law or Regulation." Employers may qualify for exemption from the MMA's requirements under the duties for contractors established by the Drug-Free Workplace Act of 1988, the Drug-Free Schools and Communities Act of 1989, and federal regulations prohibiting drug use issued by agencies such as, but not limited to, the Federal Aviation Administration, the Occupational Safety and Health Administration, the Department of Transportation, and the Mine Safety and Health Administration.

Maintenance of a Safe Workplace

Employers are still obligated under statutory and common law to provide a safe workplace for employees, customers, vendors and visitors. Even if an employer is not required by federal statutes or regulations to maintain a drug-free workplace, employers should still treat the use of marijuana no differently than the use of alcohol. If an employer knows that an employee is under the influence of marijuana and fails to take corrective action before an accident occurs, the employer could be liable for negligent supervision and potentially for negligent hiring.

Drug Testing

If an employer uses random drug testing or post-accident testing, and if an individual who tests positive presents a medical marijuana registry card, as stated above, the employer cannot take disciplinary action against the individual based on the positive drug test result, unless there happens to be additional evidence of impairment. Positive results of drug tests, based on reasonable suspicion of impairment, are a safer foundation for an employer's adverse action, as such testing, by definition, is premised on evidence that will suggest impairment.

Employee Causes of Action

The MMA does not specify remedies for an employee who is discharged in violation of the medical marijuana statute. However, plaintiff employment lawyers will likely assert claims for wrongful termination under the Arizona Civil Rights Act or may argue that the Act creates a protected class of medical marijuana users. Under the Arizona Civil Rights Act ("ACRA"), an employee who is subject to alleged unlawful employment action may bring a civil action. If the court finds that the defendant has intentionally engaged in, or is intentionally engaging in, an unlawful employment practice, the court may enjoin the unlawful employment practice and order such "affirmative action" as the court deems appropriate. "Affirmative action" may include the reinstatement of injured individuals and an award of back pay or any other equitable relief the court deems appropriate. Under the ACRA, a prevailing employee may also be entitled to attorneys' fees.

In addition, an individual may claim that the employer failed to reasonably accommodate the individual's disability under the ACRA by not allowing them to use medical marijuana to treat their disability. However, employers should not ask an employee why they are using marijuana, because if the employee is disciplined or terminated, they will likely claim discrimination under the Americans with Disabilities Act or the ACRA, due to their medical condition (perceived disability) rather than their use of marijuana.

Finally, a terminated employee may also claim that they were wrongfully discharged in violation of public policy. At this stage, it will likely take several years before the Arizona appellate courts issue any precedential decisions concerning these potential causes of action. Nevertheless, employers should proceed cautiously before disciplining employees who are registered medical marijuana users.

Conclusion

Arizona employers should take a cautious approach in addressing job applicants and current employees who are registered medical marijuana users. Initially, employers must review their existing substance abuse policies to ensure that they are in compliance with the new MMA. If an employer's drug testing program turns up positive results, if the individual is a medical marijuana user, and if the employer is not subject to federal drug-free workplace requirements, the employer must ensure that it has additional evidence of the person's impairment before basing any employment action on the positive test result.